Filed 8/18/26 McGibney v. County of San Luis Obispo CA2/6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
PATRICK MCGIBNEY, et al., 2d Civ. No. B347592
(Super. Ct. No. 23CV-0763)
Plaintiffs and Respondents, (San Luis Obispo County)
v.
THE COUNTY OF SAN LUIS
OBISPO, et al.,
Defendants,
ANASTASI DEVELOPMENT
COMPANY, LLC,
Real Party in Interest and
Appellant.
Anastasi Development Company, LLC, appeals the
superior court’s judgment granting a peremptory writ of
mandate. The writ directed the County of San Luis Obispo
(County) to vacate its approval of appellant’s final map
subdividing a 19.4-acre parcel into 98 lots, 97 of which would
accommodate single-family residences. In a letter to this court
dated December 10, 2025, County’s counsel stated that County “is
taking a neutral position in this appeal and, for that reason, is
not participating in this appeal.”
Shortly before appellant’s tentative map was due to expire,
appellant submitted a final map that did not comply with one of
the conditions of approval of the tentative map. Nevertheless,
County determined that appellant had substantially complied
with the condition. It approved the final map subject to a
restrictive covenant providing that no lot could be developed until
the condition had been satisfied.
We conclude County lacked the power to approve the final
map because the condition had not been satisfied at the time of
its approval. The Subdivision Map Act does not authorize a
county to use a restrictive covenant to circumvent statutory
deadlines. Accordingly, we affirm.
The Subdivision Map Act
“The Subdivision Map Act (Gov. Code, § 66410 et seq.) (the
[Map] Act) is ‘ “the primary regulatory control” ’ governing the
subdivision of real property in California.[1] [Citations.] The
[Map] Act is ‘designed to promote orderly community
developments and involves an application process that
culminates in public hearings to determine whether a subdivision
map will be approved.’ [Citation.] Under the [Map] Act, ‘the “
‘[r]egulation and control of the design and improvement of
subdivisions’ ” is vested in local agency legislative bodies such as
a city council, which must adopt ordinances on the subject.’ ”
1 Unless otherwise stated, all statutory references are to
the Government Code.
2
(Covina Residents for Responsible Development v. City of Covina
(2018) 21 Cal.App.5th 712, 731.)
“ ‘The [Map] Act “requires a two-step procedure to mapping:
[a]pproval of a tentative map followed by approval of a final
subdivision map by the local agency. . . .” The approving
agency . . . may grant or deny approval or conditionally approve a
tentative map. [Citation] [¶] Once approval or conditional
approval of a tentative map has been secured, the developer has a
specific period of time within which to secure a final map.’ ”
(Bodega Bay Concerned Citizens v. County of Sonoma (2005) 125
Cal.App.4th 1061, 1067-1068 (Bodgea Bay).)
“Generally, a final map must be approved if it substantially
complies with a previously approved tentative map [citation] and
meets the requirements applicable to the subdivision when the
tentative map was approved [citation].” (City of Goleta v.
Superior Court (2006) 40 Cal.4th 270, 276; see Beck Development
Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th
1160, 1199 (Beck Development Co.) [“the time for the local agency
to take action with respect to a proposed subdivision is when the
tentative map is under consideration and, provided the final map
is in substantial compliance with the tentative map and any
conditions imposed on its approval, the approval of the final map
becomes a ministerial act”].)
Factual and Procedural Background
Vesting Tentative Tract Map 1646 (the Tentative Map) was
approved in 1991 by operation of law. It authorized the
subdivision of a 19.4-acre site into 100 lots. The site is in the
unincorporated community of Los Osos and the Estero Planning
Area.
3
The Tentative Map included two conditions of approval: (1)
“The project shall connect to a community-wide sewer system
approved by the Regional Water Quality Control Board. The
Applicant shall not file the final map unless and until a
community-wide sewer system has been constructed and is
available for the project to connect to.” (2) “Prior to filing the
final map, the Applicant will be required to demonstrate an
adequate water supply consistent with the County policies in
effect at the time the final map is filed.” The first condition was
referred to as “Additional Project Description 1” (APD 1). The
second condition was referred to as “Additional Project
Description 2” (APD 2).2
The two conditions “helped mitigate the concerns with the
project at that time − namely, the issue of overconcentrated
septic systems and groundwater quality.” A 1990 Department of
Planning and Building staff report warned, “The proposed
subdivision is likely to cause serious public health problems
because the method of sewage treatment (a site contained sewage
collection system with seepage pits) will not remove nitrates and
will further worsen the nitrate problems in the ground water.”
The original expiration date of the Tentative Map was June
14, 1993. After numerous extensions, the Tentative Map was due
2 A May 2023 County Planning Commission staff report
noted: “Since the vesting tentative map was approved by
operation of law it does not have conditions of approval. The
subdivider included ‘project features’ as part of the project
description to facilitate recordation of a final map . . . .” For all
intents and purposes, the “project features” operated as
conditions of approval. Accordingly, for ease of discussion, we
refer to APD 1 and APD 2 as conditions of approval.
4
to expire on December 14, 2023. No further extensions were
permissible.3 APD 1 had not been satisfied. Nevertheless,
appellant submitted its Final Map for processing.
In October 2023 County’s Public Works Department
prepared a staff report for County’s Board of Supervisors (the
Board). The report stated: “[S]ewer service is physically
available, however, it is not presently legally available because of
a regulatory condition that was placed by the [California Coastal
Commission (Coastal Commission)] in 2010.”4 (Italics added.)
The staff report explained: the project’s sewer system will
be connected to the Los Osos Water Recycling Facility (LOWRF).
“[T]he LOWRF has been constructed, is operational and there are
no physical limitations to the development connecting to the
facility. In fact, the existing home located on the project site has
a sewer connection and receives sewer service.” But “[w]hen the
County obtained its Coastal Development Permit [] from the
California Coastal Commission [] in 2010 for the LOWRF, . . . the
[Coastal Commission] included Condition 6 which prohibits the
3 The superior court observed, “Both sides agree that the
ultimate unextendible deadline for final map approval was
December 14, 2023.”
4 “ ‘The [California] Coastal Act [of 1976] created the
California Coastal Commission . . . .’ [Citation.] [¶] Under the
Coastal Act, the Commission is required to protect a coastal
zone’s delicately balanced ecosystem.” (Hagopian v. State of
California (2014) 223 Cal.App.4th 349, 361.) “California courts
have consistently recognized the supremacy of the Coastal Act
over matters of local concern . . . .” (Redondo Beach Waterfront,
LLC v. City of Redondo Beach (2020) 51 Cal.App.5th 982, 998.)
5
County from connecting the LOWRF to any undeveloped lots
unless and until the [Coastal Commission] approves an
amendment to the Estero Area Plan to address longstanding
concerns over water and sensitive habitat, among other things.”5
Because the Coastal Commission had not approved the
amendment, it was not feasible for appellant to satisfy APD 1
before the expiration of the Tentative Map on December 14, 2023.
The staff report continued: “[The] Public Works
[Department] has issued [appellant] a conditional will-serve
letter . . . for sewer service indicating that the LOWRF has the
capacity to serve the development pending the removal of
condition 6 by the [Coastal Commission], which is anticipated to
occur in the foreseeable future.” “Since [appellant] has met the
conditions of approval, but still has policy-related constraints
related to the connection of the LOWRF (from the existence of
Condition 6), a Restrictive Covenant has been proposed to
address this circumstance. The Restrictive Covenant ensures
that no construction . . . will take place until the restrictions . . .
for the wastewater treatment system are lifted and will help
address any concerns that the [Coastal Commission] has
regarding the County’s compliance with Condition 6. Therefore,
5 Condition 6 provides: “Wastewater service to
undeveloped properties within the service area shall be
prohibited unless and until the Estero Area Plan is amended to
identify appropriate and sustainable buildout limits, and any
appropriate mechanisms to stay within such limits, based on
conclusive evidence indicating that adequate water is available to
support development of such properties without adverse impacts
to ground and surface waters, including wetlands and all related
habitats.”
6
the site shall remain in the condition it is in today until
Condition 6 is lifted by the [Coastal Commission].”
The staff report concluded with the following statement:
“Because the underlying purpose of condition 1 [APD 1] was to
ensure that there was a community wide sewer system as
opposed to septic systems, and because there is a community
wide sewer system that can connect to the development once
Condition 6 is lifted, staff has determined that [appellant] has
substantially complied with [APD 1].” (Italics added.)
On October 31, 2023, the Board approved the Final Map for
Vesting Tentative Tract Map 1646 (the Final Map) “subject to the
recordation of a Restrictive Covenant” that “no lot within the
Subdivision . . . may be developed until Special Condition 6 has
been satisfied to the approval of the California Coastal
Commission.” The “recitals,” i.e., introductory paragraphs, of the
restrictive covenant provide in part, “County has determined
APD Nos. 1 and 2 . . . have been satisfied insofar as to allow a
final map to [be] recorded . . . subject” to the restrictive covenant.
The Final Map authorized a subdivision consisting of 98 lots, two
lots fewer than the 100 lots authorized by the 1991 Tentative
Map. Three supervisors voted in favor of approval of the Final
Map, and two supervisors voted against it.
In December 2023 respondents filed a petition for a
peremptory writ of mandate. They claimed “the County abused
its discretion by approving the Project because [] the conditions
precedent to the approval and filing of a final map were not
satisfied . . . .”
In its ruling on the petition, the superior court noted:
“[T]he project has been on hold for more than 30 years while the
County sought answers to water and sewer problems in the
7
coastal community. Finally, in October 2023, faced with a non-
extendable deadline under the state’s Subdivision Map Act, but
still without California Coastal Commission approval for hookups
to a new sewer treatment plant, the County approved a final map
for the development.” “Months later [on June 13, 2024,] the
Coastal Commission approved an amended Estero Area Plan that
was adopted by the County on October 29, 2024, finally clearing
the way for sewer connections to undeveloped lots in Los Osos.”
“[B]oth sides agreed that Special Condition 6 has been lifted and
sewer connections are now available to the 98 lots in the Anastasi
Development.”
The superior court ruled that APD 1 had not been satisfied
because “no sewer connection was legally available to the
Anastasi Development on October 31, 2023,” when County
approved the Final Map. Therefore, the court issued a writ of
mandate “directing the County to vacate its approval of the
Anastasi Development’s final map.” On the other hand, the court
concluded that County had not “abused its discretion in finding
that there is enough water to serve the subdivision and that APD
2 had been met at the time the final map was approved.”
The Case is Not Moot
Appellant claims the case is moot because “Special
Condition 6 has been satisfied and the prohibition on new
development connections to the LOWRF has ended.” “[A] case
becomes moot when a court ruling can have no practical effect or
cannot provide the parties with effective relief.” (Lincoln Place
Tenants Assn. v. City of Los Angeles (2007) 155 Cal.App.4th 425,
454.)
Appellant contends: “[T]here is no effective relief on
Respondents’ claim because [if this court upholds the granting of
8
a peremptory writ] the end result on remand to the County is a
legally mandated reapproval of the Final Map.” “[T]he [County’s]
Subdivision Ordinance . . . grants [appellant] the right to cure the
grounds on which the Board disapproves the Final Map.”
Appellant is referring to County Code section 21.06.050(b), which
provides: “The board of supervisors shall approve the map if it is
determined to be in conformity with the requirements of this title
and the Subdivision Map Act. The board of supervisors shall
disapprove the map if it is determined to be not in conformity
with this title or the Subdivision Map Act, and shall advise the
subdivider of its disapproval and the reason or reasons therefor.
Within thirty days, the subdivider may file with the county
surveyor a map altered to conform to the requirements of the
board of supervisors and to the procedures specified under this
title.”
Appellant argues: “The writ [issued by the superior court]
will require the Board to vacate the Final Map approval based on
the . . . court’s ruling regarding the effect of Special Condition 6
on APD-1 compliance. [County’s] Subdivision Ordinance will
require the Board to afford [appellant] an opportunity to cure the
reason for denying the Final Map approval. The resolution of
Special Condition 6 removes the only reason the Board would
have to deny the Final Map approval pursuant to the writ and
the [superior] court’s decision. Under the Map Act, the Board
would be required to reapprove the Final Map—and thus no
effectual relief would be granted to [respondents] on their claim.
[¶] Since the only grounds on which the [superior] court entered
judgment in [respondents’] favor is moot, this Court should
reverse the [superior] court’s judgment and direct [it] to enter
judgment in favor of the County and [appellant].”
9
The relevant provision of the Map Act is section 66452.6,
subdivision (d) (section 66452.6(d)). Based on the statute’s first
sentence, it would appear that the expiration of the Tentative
Map on December 14, 2023, rendered that map void so that
appellant must file a new tentative map irrespective of County
Code section 21.06.050(b). The first sentence of section
66452.6(d) provides: “The expiration of the approved or
conditionally approved tentative map shall terminate all
proceedings and no final map or parcel map of all or any portion
of the real property included within the tentative map shall be
filed with the legislative body without first processing a new
tentative map.” (See 7 Miller & Starr, Cal. Real Estate (4th ed.
2025) § 20:18 [“When [the tentative map] expire[s], the tentative
map is void and there can be no further proceedings for the
division of the property pursuant to the expired map unless
another [tentative] map is filed. . . . A final map cannot be filed
after the tentative map has expired”]; Bodega Bay, supra, 125
Cal.App.4th at p. 1071 [the first sentence in subdivision (d) of
section 66452.6, prohibits the subdivider from proceeding with
the project after the tentative map has expired. “The directive
that ‘[t]he expiration of the approved or conditionally approved
tentative map shall terminate all proceedings’ presumably
precludes the subdivider from filing not only a final map, but also
a request for an extension of the tentative map or a request for a
stay when the tentative map is no longer effective”]; Friends of
Westhaven & Trinidad v. County of Humboldt (2003) 107
Cal.App.4th 878, 882.)
But in its reply brief appellant asserts: “[T]he first
sentence is not the relevant part of the statute. The relevant part
of the statute is in the second sentence . . . .” The second
10
sentence of section 66452.6(d) provides, “Once a timely filing [of
the final map] is made, subsequent actions of the local agency,
including, but not limited to, processing, approving, and
recording, may lawfully occur after the date of expiration of the
tentative map.” (Italics added.) The third sentence of section
66452.6(d) provides, “Delivery to the county surveyor or city
engineer shall be deemed a timely filing for purposes of this
section.”
Appellant argues: “Once a final map is delivered to the
County surveyor [before the expiration of the tentative map] (as
in this case), [the second sentence of] Section 66452.6(d) allows
the County to act on the final map after the tentative map
expiration date, without limitation.” “The County would continue
processing the Final Map that was delivered to the County
Surveyor before the Tentative Map expired. Under County Code
Section 21.06.050(b), if the Board disapproves the Final Map, the
Board is required to communicate its reasons to [appellant], who
then has 30 days to file an ‘altered’ map that conforms to the
Board’s requirements. In this case, [appellant] does not even
need to file an altered map because the only issue is the
resolution of Special Condition 6.” “The net result is that the
County now has a ministerial duty to approve the Final Map . . . .
Issuing a writ will not change the outcome, which is why this
case is now moot.”
In order for County to act on the Final Map after the
expiration of the Tentative Map, the Final Map must have been
“timely” filed, i.e., filed before the expiration of the Tentative
Map. (§ 66452.6(d).) As we explain in detail below, the Final
Map could not have been timely filed because APD 1 prohibited
its filing. APD 1 provided, “The Applicant shall not file the final
11
map unless and until a community-wide sewer system has been
constructed and is available for the project to connect to.” (Italics
added.) Since Special Condition 6 had not been satisfied, the
sewer system was unavailable when appellant purported to file
its final map.
We reject appellant’s claim that, “[u]nder the third
sentence of Section 66452.6(d), the Final Map was timely filed
when it was delivered to the county surveyor months before the
Tentative Map expiration date.”6 The court rejected a similar
claim in Ailanto Properties, Inc. v. City of Half Moon Bay (2006)
142 Cal.App.4th 572, 600. The court reasoned, “[I]f we were to
accept Ailanto's argument, it could secure extensions of its
vesting tentative rights simply by filing documents that
purported to be phased final maps with the city engineer, even if
the documents failed to comply with the conditions of the vesting
tentative map.” (Ibid.) Such an interpretation “would frustrate
the manifest purposes of the legislation.” (Ibid.)
Accordingly, the case is not moot.
6 Appellant alleges, “[T]he County Surveyor determined
and certified on the Final Map that the map substantially
complied with the Tentative Map . . . .” Appellant does not cite
any portion of the record in support of this allegation. “California
Rules of Court, rule 8.204(a)(1)(C) states that each appellate brief
must ‘[s]upport any reference to a matter in the record by a
citation to the volume and page number of the record where the
matter appears.’ ” (Wentworth v. Regents of University of
California (2024) 105 Cal.App.5th 580, 595.) “ ‘[W]e may
disregard factual contentions that are not supported by citations
to the record . . . .’ ” (County of Sacramento v. Singh (2021) 65
Cal.App.5th 858, 861.)
12
Standard of Review
“ ‘[T]he scope and standard of our review are the same as
the trial court’s, and the lower court’s findings are not binding on
us. . . .’ ” (Fat v. County of Sacramento (2002) 97 Cal.App.4th
1270, 1277.) “The appellate court . . . does not review the actions
or reasoning of the superior court, but rather conducts its own
review of the administrative proceedings to determine whether
the superior court ruled correctly as a matter of law.”
(Hongsathavij v. Queen of Angels/Hollywood Presbyterian
Medical Center (1998) 62 Cal.App.4th 1123, 1137; see also
Vineyard Area Citizens for Responsible Growth, Inc. v. City of
Rancho Cordova (2007) 40 Cal.4th 412, 427 [“[t]he appellate court
reviews the agency's action, not the trial court's decision”].)
“[T]he standard for review of agency decisions in connection
with regulatory approvals is generally one of abuse of discretion.
‘ “Abuse of discretion is established if the [agency] has not
proceeded in the manner required by law, the order or decision is
not supported by the findings, or the findings are not supported
by the evidence.” . . .’ ” (Environmental Protection Information
Center v. California Dept. of Forestry & Fire Protection (2008) 44
Cal.4th 459, 478; see also Code Civ. Proc., § 1094.5, subd. (b).) In
its ruling the superior court stated, “The parties agree that the
County's actions are reviewed for abuse of discretion. (Code Civ.
Proc., § 1094.5(b).)”
The Final Map Did Not Substantially
Comply with the Tentative Map
Section 66474.1 provides, “A legislative body shall not deny
approval of a final or parcel map if it has previously approved a
tentative map for the proposed subdivision and if it finds that the
final or parcel map is in substantial compliance with the
13
previously approved tentative map.” The Board did not expressly
find that the Final Map substantially complied with the
Tentative Map. In its ruling the superior court concluded, “[T]he
County staff report under consideration by the Board determined
‘that [appellant] substantially complied with APD 1’ and the
Board’s finding of substantial compliance can be implied by its
approval of the final map.” We agree. The restrictive covenant
stated that “County has determined APD Nos. 1 and 2 . . . have
been satisfied insofar as to allow a final map to [be] recorded . . .
subject” to the restrictive covenant.
Appellant contends, “[T]he Board properly found the Final
Map substantially complied with APD-1.” (Bold and
capitalization omitted.) As to this issue, the underlying facts are
undisputed. Accordingly, this is a question of law that we
independently review. (Fiorentino v. City of Fresno (2007) 150
Cal.App.4th 596, 602 [“We independently review questions of
law, which include issues of (1) statutory construction and (2) the
application of that construction to a set of undisputed facts”].)
The “substantial compliance doctrine . . . is ‘commonly
understood to mean “compliance with the substantial or essential
requirements of something (as a statute or contract) that satisfies
its purpose or objective even though its formal requirements are
not complied with.” ’ [Citation.] ‘ “Where there is compliance as
to all matters of substance[,] technical deviations are not to be
given the stature of noncompliance. [Citation.] Substance
prevails over form.” ’ ” (Manderson-Saleh v. Regents of University
of California (2021) 60 Cal.App.5th 674, 701.)
The Final Map’s failure to comply with APD 1 was not a
technical deviation. The superior court reasoned: “APD 1
requires, in no uncertain terms, that ‘[t]he Applicant shall not file
14
the final map unless and until a community-wide sewer system
has been constructed and is available for the project to
connect to.’ . . . It does not . . . allow final map approval if the
County and the developer have a good faith belief that [the]
sewer connection will be available in the near future.”
“[Appellant] could not secure extensions of its vesting tentative
rights simply by filing documents in late 2023 that predicted the
tentative map conditions would be fulfilled in the future – even if
those predictions were later shown to be accurate.”
The superior court continued: “[A]s a backup position, the
County and the developer argue that the restrictive covenant
agreement saves the final map by ensuring that no development
will take place on any of the lots until sewer connections are
available. There is no authority, however, for the use of
restrictive covenants to toll the Subdivision Map Act deadlines.
Allowing this type of workaround would render the Subdivision
Map Act timeline meaningless . . . .”
We agree with the above reasoning of the superior court.7
The unambiguous language of APD 1 means what is says.
(Trans-Action Commercial Investors, Ltd. v. Jelinek (1997) 60
Cal.App.4th 352, 363 [“If there is no ambiguity in the language of
a provision, we must presume the provision means what it says;
we will not resort to more remote indicia of underlying intent”].)
7 We disagree with the superior court’s statement that
“[a]llowing this type of workaround would . . . permit a developer
to secure tentative vesting rights in perpetuity simply by agreeing
to restrictive covenants that mirror the conditions of the
tentative vesting map.” (Italics added.) After the final map has
been recorded, the rights conferred by a vesting tentative map
are subject to statutory time limits. See footnote 9 at p. 18, post.
15
The Final Map cannot be filed “until a community-wide sewer
system . . . is available for the project to connect to.” (Italics
added.) Such a sewer system was not available when the Board
approved the Final Map. A sewer system cannot be deemed
“available” if, as County’s staff report recognized, “it is not
presently legally available because of a regulatory condition that
was placed by the [Coastal Commission] in 2010.” (Italics added.)
If something is not legally available, then it is unavailable. The
restrictive covenant acknowledges that, “with the exception of the
one [existing] single family residence” in the subdivision, “County
cannot provide wastewater service to any lots within the
Subdivision” until Special Condition 6 has been satisfied. (Italics
added.)
We reject appellant’s claim that courts must defer to the
Board’s interpretation of APD 1 and its decision that the Final
Map substantially complied with APD 1 as so interpreted.
Because APD 1 means what it says, there is nothing further to be
interpreted. The issue is whether the Final Map substantially
complied with APD 1 within the meaning of section 66474.1.
This is a legal question that courts decide. (Eith v. Ketelhut
(2018) 31 Cal.App.5th 1, 4 [“Courts decide legal questions].”)
“[A]gency interpretations [of a statute] are not binding or
necessarily even authoritative. To quote the statement of the
Law Revision Commission in a recent report, ‘The standard for
judicial review of agency interpretation of law is the independent
judgment of the court, giving deference to the determination of
the agency appropriate to the circumstances of the agency action.’
” (Yamaha Corp. of America v. State Bd. of Equalization (1998)
19 Cal.4th 1, 8.)
16
For approximately 30 years, extensions of the Tentative
Map froze in place the ordinances, policies, and standards in
effect when the Tentative Map application was determined to be
complete. (Hock Investment Co. v. City and County of San
Francisco (1989) 215 Cal.App.3d 438, 447, fn. 4 [“Because the
final map must be approved if it substantially complies with the
tentative map, regardless of changes in the law [citations], [the
Map Act] ‘freezes in place, at the time the tentative map
application is considered complete, the law applicable to
subdivision approvals . . . and gives the subdivider a form of
vested right’ ”]; accord, Kaufman & Broad Central Valley, Inc. v.
City of Modesto (1994) 25 Cal.App.4th 1577, 1588.)8
The statutory deadline for filing the final map sets a firm
time limit to the “freeze.” A time limit is necessary to motivate
developers to work diligently toward satisfying the conditions of
the tentative map. It is also necessary because planning, safety,
and environmental policies, as well as zoning laws, building
codes, and community needs, are not static. (See Hill v. City of
Clovis (2000) 80 Cal.App.4th 438, 447 [“If there has been a lapse
8 See section 66498.1, subdivision (b): “When a local agency
approves or conditionally approves a vesting tentative map, that
approval shall confer a vested right to proceed with development
in substantial compliance with the ordinances, policies, and
standards described in Section 66474.2.” (Italics added.) Section
66474.2, subdivision (a) provides, “[I]n determining whether to
approve or disapprove an application for a tentative map, the
local agency shall apply only those ordinances, policies, and
standards in effect at the date the local agency has determined
that the application is complete pursuant to Section 65943 of the
Government Code.”
17
of time between the approval of the tentative map and the final
map, and the tentative map is allowed to expire, changes in
zoning laws or legislative policies might mean significant burdens
or barriers for the subdivider”].) If the Map Act were construed
to allow a County to proceed as the Board proceeded here,
developers could evade a final map deadline and continue the
“freeze” by agreeing to an appropriate restrictive covenant.9
Appellant claims it “waived its vested rights in the
Restrictive Covenant.” The claim is based on section 4 of the
restrictive covenant, which provides, “[A]ny ministerial or
discretionary permit issued by the County relating to the
Property, including, but not limited to, coastal development
permits and building permits for the individual residences for
each lot within the Subdivision, shall be subject to the rules,
regulations and laws in effect at the time the permit is issued,
9 The “freeze” generally cannot continue for more than two
years after the recording of the final map. (See § 66498.5, subd.
(b) [“The rights conferred by a vesting tentative map . . . shall not
be less than one year or more than two years beyond the
recording of the final map”].) But where, as here, a tentative
map was issued for a subdivision of single-family residential
units, “during the five-year period following recordation of the
final map” the county “shall not require as a condition to the
issuance of any building permit or equivalent permit . . .
conformance with or the performance of any conditions that
the . . . county could have lawfully imposed[, but had not
imposed,] as a condition to the previously approved tentative . . .
map.” (§ 65961.) There are exceptions to this statutory
prohibition. (See Id., subd. (a)-(c).) The restrictive covenant
provides that, “[w]ith the exception of the one single-family
residence located” in the subdivision, appellant “waives any
rights or claims under . . . § 65961 and related case law . . . .”
18
including, without limitation, inclusionary housing requirements
and any requirements set forth by any adopted Los Osos
Community Plan and/or Los Osos Habitat Conservation Plan as
applicable.” (Italics added.)
“The waiver of a legal right cannot be established without a
clear showing of intent to give up such right. [Citation.] The
burden is on the party claiming the waiver ‘to prove it by
evidence that does not leave the matter doubtful or uncertain and
the burden must be satisfied by clear and convincing evidence
that does not leave the matter to speculation.’ ” (Brookview
Condominium Owners' Assn. v. Heltzer Enterprises-Brookview
(1990) 218 Cal.App.3d 502, 513.)
Appellant has failed to prove by clear and convincing
evidence that it waived its vested right to Map Act protections
that “freeze in place those ‘ordinances, policies and standards in
effect’ at the time the vesting tentative map application [was]
deemed complete.” (Bright Development v. City of Tracy (1993)
20 Cal.App.4th 783, 793.) Appellant merely agreed that, as to
any permit issued by the County (not by any other governmental
entity), it would abide by the rules, regulations and laws in effect
at the time the permit was issued. This was not a major
concession. (See Avco Community Developers, Inc. v. South Coast
Regional Com. (1976) 17 Cal.3d 785, 795 [it is a “general rule that
a builder must comply with the laws which are in effect at the
time a building permit is issued”]; Beck Development Co., supra,
44 Cal.App.4th at p. 1199 [“The filing of the final map establishes
the subdivision, but in order to build upon the land the developer
must still comply with any applicable requirements for obtaining
building permits or other permits”].) The alleged waiver would
not apply to County’s denial, instead of issuance, of a permit.
19
Appellant could argue that County’s denial of a permit violated
its vested rights if it would have been entitled to the permit when
the Tentative Map application was deemed complete.
Even if appellant had waived all of its vested rights under
the Map Act, for the reasons previously discussed County would
still not have been empowered to approve the Final Map subject
to the recording of the restrictive covenant. Thus, the Board
abused its discretion in approving the Final Map. “The
legislative body shall . . . approve the map if it conforms to all the
requirements of this chapter . . . . If the map does not conform,
the legislative body shall disapprove the map.” (§ 66458, subd.
(a).)
The Housing Accountability Act
Appellant contends: “[T]he Board properly approved the
Final Map under the Housing Accountability Act [(HAA, Gov.
Code, § 65589.5)].” (Bold and capitalization omitted.) Appellant
goes even further, asserting that “the Board was required to
approve the Final Map under the HAA.” Appellant argues,
“[T]he trial court failed to address that the HAA limited the
Board’s discretion to disapprove the Final Map . . . unless the
Board made written findings (which the Board did not make),
supported by a preponderance of the evidence (which does not
exist in the record), that approving the Final Map would have a
specific adverse health or safety impact that could not be
satisfactorily mitigated or avoided. ( . . . § 65589.5, [subds.]
(j)(1)(A) & (B).)”
The HAA was “enacted in 1982 with the goal of
‘meaningfully and effectively curbing the capability of local
governments to deny, reduce the density for, or render infeasible
housing development projects.’ (§ 65589.5, subd. (a)(2)(K).)”
20
(California Renters Legal Advocacy & Education Fund v. City of
San Mateo (2021) 68 Cal.App.5th 820, 830-831.) “[T]he HAA
restricts the ability of local governments to deny an application to
build housing if the proposed project complies with general plan,
zoning, and design review standards that are ‘objective.’ ” (Id., at
p. 831.)
“ ‘A judgment or order of the lower court is presumed
correct’ ” and “ ‘error must be affirmatively shown. . . .’ ”
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564) The
appellant “bears the burden of showing error.” (Frank and
Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 474.)
Thus, to prevail on this issue appellant must show that (1) the
HAA authorized/required County to approve the Final Map even
though it did not substantially comply with the Tentative Map,
and (2) the HAA trumps the Map Act.
Appellant has failed to carry its burden. It cites no
pertinent authority in support of its position. “The Subdivision
Map Act . . . ‘is “the primary regulatory control” governing the
subdivision of real property in California.’ ” (Cox v. City of
Oakland (2025) 17 Cal.5th 362, 368, italics added; accord,
Gardner v. County of Sonoma (2003) 29 Cal.4th 990, 996-997.)
“When ‘a landowner wishes to subdivide its property, . . . the
landowner must comply with the Subdivision Map Act. . . .’ ”
(Van’t Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549,
564.)
Disposition
The judgment is affirmed. Respondents shall recover their
costs on appeal.
21
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
CODY, P. J.
BALTODANO, J.
22
Craig van Rooyan, Judge
Superior Court County of San Luis Obispo
______________________________
Cox, Castle & Nicholson and Alexander M. DeGood, Eric J.
Cohn; Lamport Law and Stanley W. Lamport, for Real Party in
Interest and Appellant.
Law Offices of Babak Naficy and Babak Naficy, for
Plaintiffs and Respondents.